White House calls for cell phone unlocking ban to be overturned

The legality of unlocking one's cell phone to run on any network has flipped back and forth in the past several years. It was deemed illegal under the Digital Millennium Copyright Act—then it was made legal by the Library of Congress in an exception to the DMCA passed in 2006. The Library chose not to renew the exemption in 2012, however, and it expired in January of this year. That inspired a petition to the White House, which a few weeks ago passed the 100,000 signature mark. The White House then promised to respond.

Today the White House posted its response to the petition. The administration opposes the Library of Congress' position, and it called for legislation to make consumers' freedom to unlock their phones crystal clear.

"If you have paid for your mobile device, and aren't bound by a service agreement or other obligation, you should be able to use it on another network," writes R. David Edelman, a White House advisor. "It's common sense, crucial for protecting consumer choice, and important for ensuring we continue to have the vibrant, competitive wireless market that delivers innovative products and solid service to meet consumers' needs."

The response tries to be diplomatic toward the Library of Congress. "The law gives the Librarian the authority to establish or eliminate exceptions—and we respect that process," writes Edelman. But his response also notes that "the DMCA exception process is a rigid and imperfect fit for this telecommunications issue," and the problem warrants a broader response.

The Library of Congress has its own statement out. The statement uses awkward language to acknowledge it's out of step with the White House, without really admitting it was wrong in the first place.

"The rulemaking is a technical, legal proceeding and involves a lengthy public process," reads the Library's statement. "It does not permit the US Copyright Office to create permanent exemptions to the law. As designed by Congress, the rulemaking serves a very important function, but it was not intended to be a substitute for deliberations of broader public policy."

Edelman's statement ends by calling for "narrow legislative fixes" that would make it clear: unlocking your cell phone isn't a crime. In addition to legislation, the White House also calls for the FCC to play a role. FCC Chairman Julius Genachowski released a statement (PDF) this morning saying that his agency is "looking into whether the agency, wireless providers, or others should take action to preserve consumers' ability to unlock their mobile phones."

This White House action may be able to solve this particular problem. But it doesn't change the fact that the DMCA exemption process is an unwieldy and problematic system attempting to deal with the big economic questions brought up by copyright enforcement in the digital age.

Long road for college phone unlocker

Overall, the petition response is a big victory for Sina Khanifar, the San Francisco entrepreneur who founded OpenSignal and started the petition. Khanifar recently told his story to Derek Khanna, and it was published on The Atlantic's website. Khanifar unlocked his own cell phone back in 2004 and then tried to sell software to allow others to do the same on a website he created called Cell-Unlock.com. However, he was soon on the receiving end of a "cease and desist" letter from Motorola saying he was breaking the DMCA.

Without cell phone unlocking, many consumers will be forced into the position of needing to buy a new phone if they want to switch carriers. It can also lead to exorbitant charges for international roaming. Those charges are what Khanifar was trying to avoid when he first unlocked his own phone back in 2005.

In an e-mail, Khanifar reflected to Ars on what has been accomplished and what still remains to be done:

As the White House said in the response, keeping unlocking legal is really "common sense," and I'm excited to see them recognizing this.

This is a big victory for consumers, and I'm glad to have played a part in it. A lot of people reacted skeptically when I originally started the petition, with lots of comments to the effect of "petitions don't do anything." The optimist in me is really glad to have proved them wrong. The White House just showed that they really do listen, and that they're willing to take action.

While I think this is wonderful, I think the real culprit here is Section 1201 of the DMCA, the controversial "anti-circumvention provision." I discussed with the White House the potential of pushing to have that provision amended or removed, and they want to continue the discussion.

Public Knowledge, a group that has long been calling for legalizing cell phone unlocking, also heralded the White House statement. However, the group noted that additional reforms to copyright are needed. "These problems will continue so long as the law is written in such a way that laws intended to protect artists can be abused to stifle competition," said Sherwin Siy of Public Knowledge.

Promoted Comments

Equally important is that under the DMCA even if phone locking were legal it is still unlawful to make an unlocking tool available to the public. You can create a tool to unlock you own phone, if you don't have the skill to make your own then tough luck. The DMCA and the processes around it are so broken that I truly believe that the best thing is to nuke it from orbit, then start again.

I'm...flabbergasted. Is this the first Whitehouse petition that's garnered more than a "we acknowledge people have expressed an opionion" sort of response?

Also, who is actually making the decisions for the Library of Congress on things like this? Is the Librarian guy simply choosing what to do on a case by case basis? Or is a group/committee of some sort that studies and comes up with a response?

Equally important is that under the DMCA even if phone locking were legal it is still unlawful to make an unlocking tool available to the public. You can create a tool to unlock your own phone, if you don't have the skill to make your own then tough luck. The DMCA and the processes around it are so broken that I truly believe that the best thing is to nuke it from orbit, then start again.

I'm...flabbergasted. Is this the first Whitehouse petition that's garnered more than a "we acknowledge people have expressed an opionion" sort of response?

There was the response to the "forgive student loan debt" petition. That one managed to rise to the level of, "Here's some stuff we were going to do anyway, and which doesn't really do what you want, but we'll institute it a few months sooner than we planned to."

Don't get me started on the separation of church and state petitions. The response to them was, in short, "No."

Don't worry. The telcos in particular, and corporations in general, will just find another way to fleece the public in order to grantee their continued high profit margins. It's really just like playing whack-a-mole with them.

I'm...flabbergasted. Is this the first Whitehouse petition that's garnered more than a "we acknowledge people have expressed an opionion" sort of response?

Also, who is actually making the decisions for the Library of Congress on things like this? Is the Librarian guy simply choosing what to do on a case by case basis? Or is a group/committee of some sort that studies and comes up with a response?

Just because they garnered 100,000 signatures is not a legally binding obligation to enact what was requested.

Some years ago, canadian conservative representative Stockwell Day proposed a measure that would have this exact result - that if 3% of the total canadian population signed on a petition, the government would be legally obligated to submit a nationwide referendum on its application.

Comic Rick Mercer pounced on this by proving how absurd the idea was. He launched a petition on his website to have Stockwell Day be forced to legally change his first name to "Dorris". Within a week, he had accumulated more signatures than the required 3% by Stockwell Day's proposition.

"As designed by Congress, the rulemaking serves a very important function, but it was not intended to be a substitute for deliberations of broader public policy."

And to be fair, the temporary exemption demonstrated that allowing unlocking did no harm, and the end of that exemption forced a discussion which could -- although nothing is certain -- lead to a change in the law rather than a half-assed Library of Congress exemption.

So the system could actually be working. Though waiting to see how it plays it in the end.

I just don't get why people simply don't purchase unlocked phones to begin with?

Most carriers only present the on contract price. If they even bothered to ask, do you think most people would bother paying $500/600/700 for the phone they were just offered $99 for?

it's not just that. there is no competitive market for unlocked phones (maybe ebay). nobody advertises unlocked prices and so they are artificially high to discourage that path. If you do purchase an unlocked phone, not only are you paying more, you are paying WAY more than market value for no reason.

I personally think that phones should not be tied and should be financed along side. This still won't lower prices because people will not really differentiate between $20 and $25 per month ($480 to $600 over 2 years) but it would be fair. i would pay what i pay for the phone however i pay for it, and would pay for the service separately.

I can understand a locked phone if the celco is paying part of the cost until the contract is up or is paid off which ever comes first. But once contract is up the cellphone should be the property of the user. Keeping it locked would be like buying a car and not being able to use it except you paid a monthly fee to the motor company that made it. All cell phones should be required to be unlocked at the end of contract without having to be ask to be unlocked.

The problem isn't you unlocking your phone. Rather, if you took your AT&T iPhone to T-Mo and said you wanted to switch (and were off contract), right now T-Mo would have to tell you to contact AT&T to unlock the phone. If tools existed to unlock the phone w/o carrier intervention, then T-Mo could just unlock the phone, plug in your new SIM card, sign you up and have you out the door quickly.

I just don't get why people simply don't purchase unlocked phones to begin with?

If you're on a carrier such as AT&T, there is no incentive to do so, as they'll charge you the same contract rate whether or not you take a subsidized handset from them.

This. There's no bring-your-own price on most carriers, so no reason not to take the subsidized phone. You're paying for it either way. Particularly if the coverage or features of that carrier matter to you, or if you don't even have options among no-contract carriers (this'll vary by where you live).

As some others have said, the real problem is the anti-cirtumvention part of the DMCA. It's rotten to the core. (The rest is as well but that's another matter.) There isn't even legal DVD ripping software in the US because of it, which is absolutely ridiculous. The whole damn thing should be repealed, but it's almost impossible to repeal a law in the US: people are too used to the status quo and too scared of change.

The DMCA and the processes around it are so broken that I truly believe that the best thing is to nuke it from orbit, then start again.

which to this day. no law was ever removed and rewritten. People in congress dont have the programming logic of shit-is-broken-time-to-rewrite-program.

The 18th Amendment to the Constitution and the Volstead Act were repealed by the passage of the 21st Amendment. Innumerable municipal and state Jim Crow laws were nullified with the passage of the Civil Rights Act of 1964. Simply because a law that you personally disagree with has not yet been repealed or otherwise nullified doesn't mean that "no law was ever removed and rewritten".

As some others have said, the real problem is the anti-cirtumvention part of the DMCA. It's rotten to the core. (The rest is as well but that's another matter.) There isn't even legal DVD ripping software in the US because of it, which is absolutely ridiculous. The whole damn thing should be repealed, but it's almost impossible to repeal a law in the US: people are too used to the status quo and too scared of change.

Well, I think you would need to pass a replacement that simultaneously repealed the original. While I agree with eliminating the anti-circumvention part, and I definitely think there need to be some changes to make the takedown process harder to abuse, it would be bad to simply repeal the safe harbor parts of it without a better replacement. It would be really bad if every web service with user-generated content was suddenly liable for any copyright infringement by its users until our dysfunctional Congress managed to pass a better replacement.

Equally important is that under the DMCA even if phone locking were legal it is still unlawful to make an unlocking tool available to the public.

I'm not sure this is true. Supposedly legitimate tools are available for unlocking. I had to connect to a vendor API as part of the provisioning software at a regional wireless carrier that did phone unlocking. The software was called Houdini. http://www.houdinisoft.com/

I'm not saying that the problems with the DMCA are not important -- in fact, they are critical on a number of different fronts -- but I would like to point out that they are by no means the only issues which affects cell phone unlocking. One other important point in all of this is that unlocking in the US still has fairly limited value, due to the vast differences between the various wireless networks. You can unlock your old AT&T iPhone and then march over to T-Mobile to activate it... but you don't get full use of their 3G data network, because it's different from AT&T's network. Worse yet, your Sprint CDMA phone or Verizon CDMA phone is very nearly useless on any other network, unless that network is piggybacking on the original network. So even within the CDMA and GSM standards, there are far too many idiosyncratic differences between the different providers' implementations.

So with the introduction of LTE, you might speculate that it's fantastic that all of the major providers are finally moving to a single standard, right? Not so much... because LTE operates on a dizzying array of frequency bands ranging from about 700MHz to 3.5GHz. So at present, existing phones can only handle a small handful of those different bands; as such, LTE phones are generally only designed to operate on the frequencies of the target carrier... which yet again makes it nigh impossible to know if your phone is going to be at all usable on a different carrier.

So the ability to unlock cellphones does not actually give consumers the freedom of choice that everyone seems to think it gives them. In the vast majority of cases, you're better off just selling the old handset, and buying a new one with your new carrier.

Equally important is that under the DMCA even if phone locking were legal it is still unlawful to make an unlocking tool available to the public.

I'm not sure this is true. Supposedly legitimate tools are available for unlocking. I had to connect to a vendor API as part of the provisioning software at a regional wireless carrier that did phone unlocking. The software was called Houdini. http://www.houdinisoft.com/

17 U.S.C. § 1201(a)(1)(A) - circumventing DRM in order to access a protected content without authorization is illegal. This is the part that the trienial review deals with, basically carving out exceptions of what is legal/illegal.17 U.S.C. § 1201(a)(2) and 17 U.S.C. § 1201(b) - manufacturing and trafficking devices capable of bypassing DRM is illegal.

Just because there are tools available out there that you can use to bypass DRM does not mean it is legal.

I just don't get why people simply don't purchase unlocked phones to begin with?

Because out of the 4 major carriers only one actually has plans that are cheaper if you provide your own unlocked phone. All the others you'll end up paying the same monthly rate either way so you'd be rather silly to spend 500+ on a unlocked phone instead of 99-199$ on a subsidized locked phone if you want/need to be with one of those carriers. Not going to argue against prepaid carriers or the value of t-mobiles BYOD plans but they aren't for everyone.

I have to see the response as a positive thing but it doesn't mean that anything will actually happen. It's just the white house saying, yeah we agree. I'll wait until a new bill is passed and unlocking is legal before I start celebrating.

I'm also a bit worried about

Quote:

"If you have paid for your mobile device, and aren't bound by a service agreement or other obligation, you should be able to use it on another network,"

I don't see why I need to have finished paying for the phone and be out of contract for me to be able to unlock the phone. As was pointed out in the article, an unlocked phone can be very handy when traveling. A local prepaid sim is almost always cheaper than international roaming rates for a major carrier. The contract or service agreement should be sufficient on it's own to handle any situations where the phone hasn't been "paid off". After all isn't that what the ETF is for? Haven't most carriers also added a clause requiring you to return the phone in the first month or couple months to avoid those situations where new contract with new phone + ETF is actually cheaper than buying the unlocked phone?

The problem I have with this whole affair is that it shouldn't be a discussion because the thing being protected (the unlock code) is a fact, not a creative work and therefore should not be protected by the DMCA.

Funny thing about the White House making calls like this... They mean nothing. It's congress that passes and overturns laws. The White House can call for whatever it likes. Congress can laugh at him and do what they like. The executive branch (President) does not set domestic policy. It's the legislative branch (Congress).

Equally important is that under the DMCA even if phone locking were legal it is still unlawful to make an unlocking tool available to the public.

I'm not sure this is true. Supposedly legitimate tools are available for unlocking. I had to connect to a vendor API as part of the provisioning software at a regional wireless carrier that did phone unlocking. The software was called Houdini. http://www.houdinisoft.com/

17 U.S.C. § 1201(a)(1)(A) - circumventing DRM in order to access a protected content without authorization is illegal. This is the part that the trienial review deals with, basically carving out exceptions of what is legal/illegal.17 U.S.C. § 1201(a)(2) and 17 U.S.C. § 1201(b) - manufacturing and trafficking devices capable of bypassing DRM is illegal.

Just because there are tools available out there that you can use to bypass DRM does not mean it is legal.

This was never meant to address cellphones. It's meant o address creative content like DVD's and music.

Equally important is that under the DMCA even if phone locking were legal it is still unlawful to make an unlocking tool available to the public. You can create a tool to unlock your own phone, if you don't have the skill to make your own then tough luck. The DMCA and the processes around it are so broken that I truly believe that the best thing is to nuke it from orbit, then start again.

Completely, totally this. The DMCA is a bad law that puts way too much power into the hands of large corporations, stifling innovation and infringing on individual ownership rights in the process. It needs to be repealed.

Equally important is that under the DMCA even if phone locking were legal it is still unlawful to make an unlocking tool available to the public.

I'm not sure this is true. Supposedly legitimate tools are available for unlocking. I had to connect to a vendor API as part of the provisioning software at a regional wireless carrier that did phone unlocking. The software was called Houdini. http://www.houdinisoft.com/

17 U.S.C. § 1201(a)(1)(A) - circumventing DRM in order to access a protected content without authorization is illegal. This is the part that the trienial review deals with, basically carving out exceptions of what is legal/illegal.17 U.S.C. § 1201(a)(2) and 17 U.S.C. § 1201(b) - manufacturing and trafficking devices capable of bypassing DRM is illegal.

Just because there are tools available out there that you can use to bypass DRM does not mean it is legal.

This was never meant to address cellphones. It's meant o address creative content like DVD's and music.

There's another way around the DMCA problem : in South Africa there has been a law for some years now that it is illegal to sell a network locked cellphone. If the phones aren't locked, then the unlocking problem disappears.

If you get a phone with a contract then it's unlocked, so the phone companies have to be competitive or else you go somewhere else when your contract expires. They're still protected because if you cancel your contract early you have to pay whatever remains of the price of the phone. It's fair to all parties, encourages competition and the sky didn't fall when they banned locked phones (as predicted by the phone companies).